Judge claims CJ instructs how cases must be decided

31 October 2020 · Carmel Rickard

The crisis in Zimbabwe heightened this week, with a spotlight now pointed at internal problems within the judiciary. First, a judge who was suspended on contested grounds has launched an urgent application to prevent a disciplinary tribunal from being set up to investigate her. In the course of her founding affidavit she made some grave allegations against the Chief Justice, for example, saying that he routinely intervened to ensure judges decided matters in a certain way. And then, as the people of Zimbabwe were digesting her claims, a second document was published, this time apparently put out by judges of the high court and the supreme court, making similar allegations about the role of the CJ and his irregular interventions.

Seldom has the judiciary of any country in this region been in the kind of mess now seen in Zimbabwe. President Emmerson Mnangagwa had no sooner announced that he had removed Judge Francis Bere from his position on the bench for unethical conduct, than a second bombshell exploded.

One of now former Judge Bere’s colleagues, Judge Erica Ndewere, suspended earlier in October, decided to act, rather than waiting for the axe to fall. She has launched an urgent application in which she contests the reasons for her suspension. She also claims that it was improper for the Chief Justice, Luke Malaba, to have acted against her as he has done since he by-passed the established procedures.

In her founding affidavit, Judge Ndewere said there was a process that had to be followed if disciplinary conduct was considered against a judge. In this case, the Chief Justice had acted against her, without authority to do so and without following the correct steps.

Victimised

She had been given ‘an unlawful order’ by the CJ in relation to a decision she had to make, something that was ‘in direct contravention of the Constitution’. When she did not comply, she was victimised. The allegations against her were false and malicious and were calculated to compromise her judicial independence. The CJ was using ‘unlawful power to control and direct judges to act upon his instructions as it suits him,’ she said.

‘I wish to state that I am not opposed to being investigated per se as I have absolutely nothing to hide. However, what I object to strongly is the violation of my rights and the ignoring of legal provisions and established procedures in the manner in which I am being investigated and most disturbingly of all, how this investigation is being weaponised as a means of attacking not just my independence as a judge but the independence of the judiciary as a whole.’

She traces the history of the growing difficulties between herself and the CJ and notes that she was first threatened by him with ‘investigation’ because she had refused to follow his ‘unlawful directive’ to refuse bail in a case before her.

Anonymous

Judge Ndewere then lists a number of other cases in which the CJ appeared to interest himself in matters being handled by other judges.

No date has yet been announced for the hearing of her application, but as it was launched as an urgent matter, it is expected that it will be heard very soon.

Then, as Judge Ndewere’s challenge to her suspension became known, as well as the grounds on which it was based, another document became public. It is essentially anonymous but purports to have been written by judges of the high court and the supreme court.

Fear and trepidation

It is directed to Mnangagwa and is headed, ‘Untenable working conditions within the judiciary’.

The writers say that ‘given the current fear within the judiciary’, they address the President ‘with fear and trepidation.’

‘What is repeated in the public domain and on social media about the capture of the judiciary is no longer fiction or perception, it is in fact reality,’ the writers say.

Fetter

‘It is an open secret that right across the judicial structures, the Chief Justice now rules without fetter.’

The letter speaks of ‘spying’ on judges with reports made to the registrars who in turn report to the Judicial Service Commission secretariat with reports being sent on from there to the CJ.

‘As judges we no longer trust our support staff from whom we now have to hide our draft judgments for fear of being directed to change these.’

Prosecutors

Prosecutors were now wielding enormous power and they reported to ‘the illegal structures that receive reports on court cases’. ‘Any attempts to protect the interests of accused persons and other litigants are promptly reported to the Chief Justice’s office who thereafter directs heads of the various divisions to investigate’.

No supreme court judgment could be delivered with the approval of the CJ, says the letter. It was also an open secret that ‘all draft judgments in the Supreme Court are circulated amongst all the judges including those who did not hear argument on the matter. Judges who did not hear argument on a particular case can influence the result without having even read the record.’ While a draft was being circulated ‘the Chief Justice can tell the judges to change their judgment.’

The government-aligned media immediate discounted this letter and all its allegations. One pro-government newspaper dismissed the letter, saying that because the CJ and the judges had decided to fight corruption, they were now being attacked. It was a ‘carefully orchestrated move’ to engender fear in the JSS and the CJ so that they would stop inquiring in acts of misconduct by members of the judiciary.’

Carmel Rickard

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